Stewards Update  >>  June 2004

Sick Leave Restrictions

Generally, under OPM’s government-wide regulation, 5 CFR 630.401, agencies must grant sick leave to an employee when the employee:

1) receives medical, dental, or optical examination or treatment;
2) is incapacitated for the performance of duties by physical or mental illness, injury, pregnancy, or childbirth;
3) provides care for a family member who is incapacitated by a medical or mental condition or to attend to a family member receiving medical, dental, or optical examination or treatment;
4) provides care for a family member with a serious health condition;
5) makes arrangements necessitated by the death of a family member or attends the funeral;
6) would, as determined by a health care provider, jeopardize the health of others by his/her presence on the job because of exposure to a communicable disease; or
7) must be absent for purposes relating to the adoption of a child.

Normally, medical documentation for purposes relating to the use of sick leave is not required unless the absence is more than three (3) consecutive days. However, sick leave restrictions usually requires an employee to justify each period of sick leave absence and/or to abide by special reporting requirements for such absences. Sick leave restrictions can institute these requirements even in the case of absences of less than three (3) consecutive days. The basis for such restrictions is usually for so-called “leave abuse.” Because there is no standard definition of leave abuse, it is especially important that sick leave restriction letters be carefully reviewed and the events that resulted in them thoroughly investigated on a case-by-case basis. Sick leave restrictions that are not justified by the circumstances or were issued in violation of the requirements of applicable rules and/or collective bargaining agreements should be challenged with timely grievances if informal efforts fail.
Waiting until discipline has resulted under the restriction letter might present timeliness issues that prevent a successful challenge to either the appropriateness of the employee having been placed on restriction or any deficiencies in the leave restriction letter. Unless there is some contract language or agency policy to the contrary, a sick leave restriction letter can be extended for an additional period, if justified by the employee’s record during the initial restriction period.
If, at the end of the initial term, a good case can be made for the discontinuance of the leave restriction because of the employee’s good attendance and observance of reporting requirements, the steward should advocate for the discontinuance. If the agency disagrees and extends the restrictions, a grievance should be filed challenging the extension. If the leave restriction is for a set duration and it expires without any notice to the employee that it will be extended, it is no longer in effect. It is important to note that just because an employee uses sick leave regularly or usually has a zero leave balance, these circumstances are not necessarily proper grounds for the imposition of sick leave restrictions. If an employee or qualifying family member has a documented covered condition that necessitates the employee’s absence, sick leave can properly be used in such situations. This is its intended usage. Therefore, such leave usage is not by definition abusive and should not be used to justify sick leave restrictions.

Federal Register Vol. 71 No. 157 Rules and Regulations Sick Leave